A comparative analysis of non-discrimination law in Europe 2015

May 30th 2016

European network of legal experts in gender equality and non-discrimination

A comparative analysis of the implementation of EU non-discrimination law in the EU Member States, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Montenegro, Norway, Serbia and Turkey.

Introduction

The objective of this report is to compare and contrast anti-discrimination law in the 28 EU Member States and EU candidate countries (namely the former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey), as comprehensively described in the annually updated country reports written by the European network of legal experts in gender equality and non-discrimination and summarised in this publication. In addition, the report includes EEA countries, namely Iceland, Liechtenstein and Norway, which became part of the previous network in 2012.

The grounds of discrimination listed in the Directives – racial or ethnic origin, religion or belief, disability, age and sexual orientation – are considered individually and collectively. It should be recalled throughout that the purpose of this report is to provide an overview of national laws and to contrast them. In addition, compliance obligations differ considerably between EU Member States, candidate countries and EEA countries. Consequently, for detailed and nuanced information about the law of a particular country, readers are referred to the comprehensive country reports. These country reports contain information current as of 1 January 2015.

It goes beyond the scope of this report to assess the extent to which Member States have fully complied with the Directives or to assess the legislative impact of the European Directives on the laws of all the countries examined, although the report could potentially be used as one of the instruments for making such an assessment. In the transposition process ambiguities in the Directives became apparent which this report will not seek to clarify, although, where appropriate, the report makes some suggestions to that effect.

The Racial Equality Directive and the Employment Equality Directive had to be transposed into national law by 19 July 2003 and 2 December 2003 respectively in the EU 15 Member States. The 10 countries acceding to the EU on 1 May 2004 had to transpose both Directives by that date, while Bulgaria and Romania had to transpose them by 1 January 2007, the date of their accession to the EU. Entering the EU as its most recent Member State on 1 July 2013, Croatia had to transpose the legislation by that date. If and when they accede, the former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey will have to align their national legislation with EU law by the date on which they enter the EU. EU directives on anti-discrimination are not binding on EEA countries, as the EEA agreement only provides obligations on those countries vis-à-vis EU legislation related to the internal market. In practice, provisions on anti-discrimination exist, but the level of protection varies greatly compared with EU standards. As a general tendency, protection against discrimination in these countries is much more developed in relation to the ground of gender than for the other grounds.

This report looks at the main substantive issues in both Directives: the grounds of discrimination, the definition of grounds and scope, exceptions to the principle of equal treatment and positive action, access to justice and effective enforcement, and Equality Bodies.

Conclusions

The transposition of the Racial Equality and Employment Equality Directives has immensely enhanced legal protection against discrimination on the grounds of racial and ethnic origin, religion and belief, age, disability and sexual orientation across Europe. It is encouraging to note that a majority of Member States provide further protection compared to the requirements of EU law and that the levelling up of protection across grounds continues in a number of countries. In the past few years, most of the remaining shortcomings and gaps in national transpositions have been remedied, sometimes following the initiation of infringement proceedings by the European Commission and sometimes due to pressure from other stakeholders such as civil society organisations representing the groups most affected by discrimination. However, fifteen years after the adoption of the Directives, this tenth comparative overview can confirm what was already revealed in previous editions; that a small number of shortcomings still appear to remain in the legislation of some Member States and candidate countries.

Ultimately it is up to the courts to decide whether or not national law is consistent with EU law and to ensure effective implementation. Case law at national level is becoming more frequent in most countries, although the number of cases in some countries remains very low or focuses on some grounds in particular to the detriment of the others. Unfortunately, in several countries public access to case law is not available or decisions are not published on court websites, which makes it difficult to monitor discrimination cases. Lack of publicity of discrimination cases has negative consequences for the general awareness of rights and procedures, levels of trust for mechanisms and authorities dealing with cases, and ultimately for access to justice. On a positive note, the number of preliminary references lodged at the Court of Justice continues to rise, enriching and further developing EU anti-discrimination law through the interpretations of the Court. In many countries however it still remains to be seen how national courts and equality bodies will apply this developing body of case-law. Given the ambiguities in the text of the Directives, and therefore also in many national provisions, judicial interpretation is more than welcome to clarify important boundaries.

A challenge identified in many countries is the application of anti-discrimination laws in practice. Some anti-discrimination legislation, covering at least some grounds, has been in place in most countries for quite some time, yet the number of cases brought by victims seeking to assert their equality rights remains rather low. Polls regularly show an important discrepancy between the levels of discrimination experienced and discrimination that is being reported. Awareness of rights and of available mechanisms for claiming those rights is still generally quite low, and more needs to be done to break that trend. A first step which has been taken in a number of countries and which is proving to be quite effective, is targeted training for judges and other legal professionals. Some countries have also made some progress regarding positive action measures and dissemination of information on anti-discrimination laws, but much more remains to be done to increase dialogue among governments, civil society and the social partners across all grounds and to raise awareness among the public. In addition, most Member States have delegated the responsibilities as regards dissemination of information regarding anti-discrimination legislation and awareness-raising to national specialised bodies without necessarily granting them the adequate resources.

As already expressed in previous editions of this publication, detailed and specialised legislation, and in particular specific procedural rights as regards available remedies and enforcement provisions, could possibly change this situation. Although much of this machinery has been put in place by most states, it may be held that there is a possible correlation between countries with low levels of case law and countries which transposed the Directives by simply ‘lifting’ wording from the Directives for their national laws. Certain procedural barriers that affect access to justice and effective enforcement also stem from the short limitation periods foreseen in legislation, lengthy procedures, high costs and failures in the provision of legal aid, as well as issues relating to legal standing or legitimate interest. The law remains complex and often inadequate. In addition, effective access to justice could be solved through different means of collective redress such as class action, which would constitute an adequate solution to redress situations where ridiculously low compensation sums are awarded to victims and to address issues related to the costs that victims have to bear in correlation with the problem of limited access to free legal aid. Along the same lines, actio popularis, if and when generally permitted, could constitute an ideal vehicle for bringing legal action to court in cases of, for instance, hate speech against a particular vulnerable group when there is no specific victim identified but where the public interest is nevertheless harmed.

Finally, when a decision is rendered by courts or equality bodies, sanctions cannot always be said to fulfil the Directives’ requirements of effectiveness, proportionality and dissuasiveness. Further, the sanctions imposed are not always observed by respondents and recommendations are not always followed by public authorities. It goes without being said that in this field as any other, public authorities should and must be role models and aim to provide the good practice examples that are still very much needed in many countries across Europe.